Rensselaer Republican, Volume 27, Number 26, Rensselaer, Jasper County, 5 March 1896 — A STRONG ARGUMENT [ARTICLE]

A STRONG ARGUMENT

REASONS FOR A SPECIAL LEGISLATIVE session; Memorial to Governor Matthews Calling Attention to the Uneonstltutionaltty at the Apportionment Act of 1888 ahd Urging Action oa His Part—Honest and Valid Law Promised. Is a special session of the legislature desirable at this time? Able answer to this interrogatory is made in the memorial presented to Governor Matthew* by Chairman Gowdy and Committeemen McCulloch and Feeler, in behalf of and the party at large. It points but clearly the unconstitutionaiity of the act of 1885 and presents sound argument for such action as is recommended: Hon. Claude Matthews, Governor of Indiana: Under the recent decision of the supreme court iu the Denny case, the acts of the general assembly passed in 1893 and 1895, for legislative apportionment, were adjudged to be unconstitutional. The same adjudication had been theretofore made by the supreme court with respect to the apportionments enacted in 1879 and 1891, ip the Parker case, the correctness of which reaffirmed in the Denny ease, in which it is suggested by the supreme court that the validity of the act of 1883 wasnot wesonted by the record, and it was also intimated in the Denny case that, as the act of 1885 was the last act on the subject of legislative apportionment that had not been held to be unconstitutional, the ensuing elections would take place under it unless in the nwantimethe governor should see fit to call a special session of the legislature to pasa-an apportionment law. The aetrof 1885 is subject to each and every objection adjudged in either the Parker or Debny cases. Indeed the specific objection on account of which the act of 1895 was held tube unconstitutional—the double 1 senatorial district composed of Clinton, Boone and. Montgomery counties

—existed opt onlyia principle, but identically the same counties composed a double district in the aet of 1885,. as well as in the act of 18G& It to, therefore, self-evident not only that; the act ot 1885 must be set aside as unconstitutional whenever the machinery to teat it to put in motion, but that all of the people of the Whole state, from yourself to the humblest voter, have ■ actual direct personal knowledge that the qpt of 1885 is unconstitutional, and, therefore, a nullity, and mdeea there aye overwhelming reasons of a eenvineiagaud satisfactory character, no eteetiea under what has heretofore supposed to have been a valid law, but to now known to be an absolute nullity on account of its nneonstftutionality, should be considered as within the bounds of possibility. Not only was the act of 1885 unconstitutional at the time of its passage, and therefore still so, but it was flagrantly unjust and unfair, and the growth of the state since 1863, when the enumeration was made showing a voting population of 494,650, as contrasted with 627,073, the enumeration of 1865, instead of softening its barah and unjust features, has only emphasized the unfairness which was originally there. Without going into detail, we beg to suggest that it is reasonably certain, to say the least, that similar objections may be made with reference to the apportionment laws enacted in 1867 and 1873. It is not at all extraordinary that the one party oeming into power after having suffered under those apportionments, should have swung as far, if not farther, on the other ride in the apportionments made by it in 1879, 1885, 1891 and 1893, nor should it be entirely unexpected tuat when a change was again made, the apportionment then made should not have been absolutely and entirely satisfactory. System of Double Districts. 4 The principal ob jection to the act of 1895 was the formation of double districts. This principle, which existed in the apportionment act of 1851, which was recognized and continued in the constitution itself and then disappeared from the apportionment laws to appear again for the first time in the act of 1885, could be so applied, if it were permissible, as to circumvent every other constitutional safeguard and measurably perpetuate the power of the minority. Neither we nor the party we Fepresentnor you nor your party, will defend any such principle, nor will any party uphold it, but there has been in the past a great temptation to legislators, through a process that has existed for a long time in this state, to attempt to continue in power by what was supposed to be Judicious leg. isiation within constitutional limits the party to which they belonged and In whose principles they believed. Whatever may have been the feeling with the people in times past, a quickened conscience and a broader feeling of fairness among the people as a whole repudiates this method of unfair aud We are not prepared to suggest that the specific infirmity ascertained to exist with respect to the acts of 1879, 1885, 1891, 1893 and 1895 are also contained in the act of 1857, but we respectfully submit that an election under an apportionment made nearly 40 years ago under which the county of Scott, with an enumeration of less than 2,000; Brown and Warren, each with less than 8,060; Crawford, Orange, Martin, Owen and Vermillion, each with lees than 4,000, and Perry, Dubois, Lagrange, Jennings, Steuben, Franklin, Pulton, Hancock, Morgan and Washington, each with less than 5,000, is accorded one representative, while VanderbUrg. with 10,MO; Madison, with 14,968; Grant, with 13,765; St. Joseph, with 12,584; Elkhart, With 11,657, and Delaware, with 11,877, are each only given one representative, and Jefferson, with 6,246; Putnam, with 5,609, Dearborn, with 5,974; Laporte, with 9,482, are accorded two representatives each, while Marion, with 46,021; Allen, with 18,485, and Vigo, with 15,957, are given but two each, and Wayne, with an enumeration of but 10,819, is accorded three representatives, would constitute such a gross and grotesque caricature on equal representation, although the law may have been entirely constitutional when and consequently remains so, that no officer or person or association of persons would willingly accept the responsibility therefor unless it was absolutely unavoidable: and yet it is clear that all that is necessary to be done is to set the machinery of the law In motion, and every law this side of the act of 1857 must go down when tested by the constitution. If the act of 1857 should be ascertained to be unconstitutional the only remaining apportionment law under which the election might possibly be held would be that passed in 1851, which, by reason of having been recognized and approved in the constitution, itself must necessarily be held free from constitutional infirmity. Whatever other objections there may be to utilising the apportionment of 1851, it is certain that the lapse of time and the different growths of the state in the different

locaHties would only emphasize Its tpla» tm unfairness. .. ‘ Unsettled Condition es AMMn. I While it fe true, as stated above, that all the acta since 1857 have either been formally declared to be unconstitutional or are known to contain the same unconstitutional features, there is yet nowhere in any court any order directing apy of the election officers under what particular law to proceed, or forbidding them to proceed under any particular law. The judgment of the Sullivan circuit court having been reversed an<J that judgment having been specifically limited to the officers in that county, in the various connties throughout the state the election officers would, in the present condition of affairs, seem to be at liberty to pick out from the “job lot” of unconstitutional laws offered them whatever might seem the least objectionable or the most beneficial to his particular county, in which event officers in Scott. Brown, Jefferson, Putnam, Dearborn and Wayne would probably give their notices under the act of 1857, while those in Grant, Marion, Madison. Allen, Vigo and Vanderburg might proceed under the act of 1895, and stHl others might ■select an apportionment of some other year, and this would result in an election so ragged and disjointed as that the result could not by any possibility be harmonized in the creation of a legal general assembly There is no reason in law for not proceeding—in the absence of an injunction Jor mandate from a court of competent jurisdiction—upder either the act of 1879,1891, 1898 or 1895, whieh have been formally held to be unconstitutional, that does not with equal force and vigor forbid the holding of an election under the act of 1885, now universally known to be exactly as unconstitutional as either or any of the former. If an agreement'could be entered into by all the voters of all the parties of the whole state, which could be binding, and which would be respected by ail of them, it would still only result in an election under a void law—that is, without law. While the election in 1894 was held under what is now judicially ascertained to have been unconstitutional law and therefore no law at the time it was held, it had been formally adjudged by the decisions of an Inferior but a constitutional court to be a valid law and the situation'with respect to that is radically different from the situation with respect to an election ■ under the act oflßßs, now universally and bycommon knowledge discredited as being obnoxious to the constitution. While the Wishard decision emanated from an inferior court, and had not the support of thfe authority of the supreme court, and is in terms repudiated by the last expression of that court, still there was a measure of color of law in holding an election under a law adjudged, so far as the entire election machinery of the state is concerned, to be valjd and constitutional, aqd the situation of attempting next fall to hold an election under the act of 1885, after everybody knows that it needs only the touch of the judicial pen to cause it to disappear, would produce a much graver and more dangerous situation than that which obtains now with reference to the legislature elected in 1894. ■ ■

Want a Constitutional Apportionment. It is obvious that the security of the people will be increased by the enactment of a constitutional law under which the great lawmaking body of the state to to he chosen. Unwarranted though it be, yet much confusion already exists in the minds of some of the people as.to thaeffectaof laws enacted by legislatures chosen under invalid apportionments. The legislature must, of course, provide for the levy of taxes, the support of the great public institutions, the maintenance of the public credit, the security of titles, etc., and it is in the highest degree important that no question should exist at any time as to its absolute legality. There should, we submit, be a valid law, under which the election should be held and that can only be provided by the lawmaking powers—the general assembly. It is today the only power that can relieve the people of the state from the extraordinary dilemma in which they find themselves as the result of efforts by partisans to gain partisan advantage, in disregard of the mandates of the constitution. This being the grave situation, the committee of one of the great parties in the state was called together to consult concerning it, and after long, careful and conscientious deliberation, decided that the members of the general assembly should be asked to subscribe a pledge that in the event you should see fit to convene the general assembly in special session, no general legislation should be entered upon except to pass a constitutional apportionment law, and we were appointed a subcommittee to present this matter-to you. The pledges have been given in writing by a majority of the members of each house and are in our possession. With them as our authority. we can and do now positively assure you that if the legi -lature is convened in special session nothing will be done or attempted in the line of legislation, except to provide for the expenses of the session, which vriiYbc light, insKnu<&. as it wiM* . necessarily be very short, and to pass an apportionment bill which shall conform , to every requirement of the constitution, as indicated by the coarts, and that every effort shall be made that it may be equal 1 and fair in its application to the election to be held this fall. Faith In the People. We have faith in the good sense and patriotism of the law-abiding people of the state, but we are aware of the opportunities for confusion and trouble that might follow any effort to proceed either in defiance of or beyond the law. We have conceived it to be our duty under the existing emergency to meet the executive in a spirit of candor, and with a purpose to co-oper-ate in any reasonable and honorable way to avoid all possible embarrassment and confusion in the future. It is with this object in view that we present this assurance, and we do so, urging with all the earnestness of which we are capable, that you will avail yourself of your constitutional right to convene the general assembly in order that the situation may oe relieved and the election of the next general assembly placed upon a constitutional, law-abiding basis, from which we express the hope that no general assembly in the future will ever attempt to depart. In view of the exigencies of the situation, may we not hope that this memorial will have your very prompt consideration and we receive an early reply indicating your conclusions!